The Abuja division of the Court of Appeal, on Wednesday reserved judgment in the appeal brought by the All Progressives Congress (APC) and its candidate, Hon. Chike Okafor, seeking to nullify the judgment of the High Court of the Federal Capital Territory (FCT) which produced Emeka Nwajiuba of the Accord Party (AP), as a member representing Ehimembano/Ihiteuboma/Obowo Federal constituency of Imo State.
The three-man panel of the appellate court, Justice Adamu Jauro, Stephen Adah and Justice Wison Akomolafe, arrived at the decision after rejecting moves by Barr. Kingdom Okere, counsel for Emeka Nwajiuba, to terminate the appeal.
In the multiple appeals, the appellants are challenging the decision of Justice Bello Kawau of the Bwari division of the FCT High Court which had barred the Independent National Electoral Commission, INEC, from accepting or listing the candidate of the APC in the rescheduled National Assembly election.
The said order issued on February 12, 2019, gave rise to the eventual emergence of Nwajiuba as the member representing Ehimembano/Ihiteuboma/Obowo Federal constituency in controversial circumstances.
Okafor had through his counsel, Solomon Umoh (SAN) urged the Court of Appeal to nullify the decision of the trial court on the grounds that it erred in law in holding that he was functus officio to set aside his order of April 29, 2019 and the entire proceedings in suit No. FCT/HC/CV/423/2018.
Umoh submitted that the decision of April 29, 2019 and the entire proceedings in the suit is a nullity as it was made without jurisdiction, adding that a court can never be functus officio to set aside or revisit its null orders.
The appellant contended that the refusal to set aside his orders of April 29 as well as the entire proceedings in the suit has occasioned a miscarriage of justice.
Umoh further told the court that his client was never made a party to the suit and Mrs. Uzoma Chioma Mary Ann who originated the suit knew that he and not Emeka Nwajiuba (3rd respondent) was the candidate of the APC for the Federal constituency seat.
He submitted that the order made by the judge on April 29, 2019 was against the appellant, who was not a party before the court.
He said: “The orders made by the court on April 29, 2019 were made without jurisdiction as they were made well outside the 180 days permitted by the 4th alteration to the 1999 constitution for the trial court to conclude pre-election matters.
“The orders were made after the election at a time Emeka Nwajiuba who is now the beneficiary had filed an election petition at the National Assembly Election Tribunal in Owerri challenging the return of the appellant.
“The orders of the lower court were completely at variance with its ruling of April 29, whereas the court restrained the Independent National Electoral Commission (4th respondent) from recognizing Emeka Nwajiuba as a candidate in the 2019 election, the same court in its orders of April 29, 2019 directed INEC to issue certificate of return to the same Emeka Nwajiuba.
“Nwajiuba suppressed information at the lower court when he refused to informed the court that at all material times to the suit, he had ceased to be a member the APC and was the candidate of Accord Party in the election.”
On his part, the National Legal Adviser of the APC, Babatunde Ogala urged the appellate court to allow the appeal and set aside the judgment of the lower court.
He also asked the Court of Appeal to hold that the lower court lacked the jurisdiction to determine a pre-election matters outside its geographical area under the provisions of section 257 of the 1999 constitution.
The party submitted that both the decision of February 12, 2019, which gave birth to the ruling of April 29, 2019, were barred by statute having been made outside the mandatory period allowed by law.
